Seeking Employment Seeking Employment and and

Post Employment Obligations Post Employment Obligations for for

Government Attorneys Entering the Government Attorneys Entering the Private SectorPrivate Sector

Peggy LovePeggy Love Stephen J. Csontos Stephen J. Csontos Deputy Ethics OfficialDeputy Ethics Official Attorney at LawAttorney at LawOffice of General CounselOffice of General Counsel Environmental Protection Agency Environmental Protection Agency

Why is this important?Why is this important?

More than one set of rules:More than one set of rules:– Standards of Conduct, Standards of Conduct, 5 C.F.R. Part 2635.5 C.F.R. Part 2635.

– Federal criminal statute, Federal criminal statute, 18 USC 18 USC §§207, 5 C.F.R. Part 2641.207, 5 C.F.R. Part 2641.

– State Bar rules.State Bar rules.Grass may not be greener on the other sideGrass may not be greener on the other side– You could be disqualified from doing the work you were You could be disqualified from doing the work you were

hired to do after leaving Federal service.hired to do after leaving Federal service.– Law firm could be disqualified from handling a major Law firm could be disqualified from handling a major

case.case.

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What will we cover?What will we cover?Seeking employment.Seeking employment.– When you are doing it.When you are doing it.– What you need to know.What you need to know.

Post employment.Post employment.– Federal criminal statute, Federal criminal statute, 18 U.S.C. 18 U.S.C. §§207, 5 C.F.R. Part 2641.207, 5 C.F.R. Part 2641.– ABA and D.C Bar Rules.ABA and D.C Bar Rules.

Confidentiality.Confidentiality.– Standards of Conduct, Standards of Conduct, 5 C.F.R. 2635.703– ABA and D.C. Bar Rule 1.6.

Compensation,Compensation,18 U.S.C. 18 U.S.C. §§203.203.

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Seeking EmploymentSeeking Employment

Imputed financial interests.Imputed financial interests.– The financial interests of any person with The financial interests of any person with

whom you are negotiating employment are whom you are negotiating employment are imputed to you.imputed to you.

– Their financial interests are treated as if they Their financial interests are treated as if they were your own. were your own. 5 C.F.R. Part 2635.402(b)(2)5 C.F.R. Part 2635.402(b)(2)

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Seeking EmploymentSeeking Employment

When you are seeking employment – with persons whose financial interests with persons whose financial interests – would be directly and predictably affected bywould be directly and predictably affected by– particular particular mattersmatters in which you are in which you are – participating participating personally and substantiallypersonally and substantially, , – then you need to then you need to disqualifydisqualify yourself from yourself from – participation, participation, 5 C.F.R. Part 2635.4025 C.F.R. Part 2635.402,,– or get or get written authorizationwritten authorization, , 5 C.F.R. 2635.402(d),5 C.F.R. 2635.402(d), – remember certain remember certain basic principlesbasic principles, , 5 C.F.R. Part 2635.101,5 C.F.R. Part 2635.101, and and– check your check your bar rulesbar rules..

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Seeking Employment Seeking Employment occurs occurs when you . . .when you . . .

make an unsolicited communication regarding work, make an unsolicited communication regarding work, engage in negotiations regarding possible work,engage in negotiations regarding possible work, receive a positive response to a job application, orreceive a positive response to a job application, or make a response, other than rejection, to a make a response, other than rejection, to a communication regarding work. communication regarding work. 5 C.F.R. Part 2635.603(b)(1)5 C.F.R. Part 2635.603(b)(1)

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Seeking Employment Seeking Employment endsends when . . . when . . .

you/prospective employer reject the possibility you/prospective employer reject the possibility of employment and discussions end, orof employment and discussions end, or

you have not received any interest after two you have not received any interest after two months. months. 5 C.F.R. Part 2635.603(b)(2)5 C.F.R. Part 2635.603(b)(2)

However, a response that defers discussions However, a response that defers discussions does not end your status. does not end your status. 5 C.F.R. Part 2635.603(b)(3)5 C.F.R. Part 2635.603(b)(3)

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Personal and SubstantialPersonal and Substantial

Participate personally - participate directly (direct Participate personally - participate directly (direct and active supervision of a subordinate).and active supervision of a subordinate).

Participate substantially - your involvement is of Participate substantially - your involvement is of significance to the matter.significance to the matter.

For example, approving official for funding an For example, approving official for funding an activity, making recommendations, establishing activity, making recommendations, establishing

criteria for contracts or grant awards, making criteria for contracts or grant awards, making decisions, investigating or giving advice. decisions, investigating or giving advice. 5 C.F.R. Part 2635.401(b)(4)5 C.F.R. Part 2635.401(b)(4)

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MatterMatter

Particular matter focuses on specific person(s) or a Particular matter focuses on specific person(s) or a discrete & identifiable class of persons discrete & identifiable class of persons (judicial (judicial proceeding, application, request for proceeding, application, request for ruling).ruling).Does not need to involve formal parties.Does not need to involve formal parties.May include governmental action (legislation, May include governmental action (legislation, policy making) that is narrowly focused on policy making) that is narrowly focused on the the interest of a discrete and identifiable interest of a discrete and identifiable class class of of persons.persons. 5 C.F.R. Part 2635.402(b)(3)5 C.F.R. Part 2635.402(b)(3)

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Recusal/Disqualification Recusal/Disqualification means . . . means . . .

avoiding participation in a matter.avoiding participation in a matter.To recuse yourself, To recuse yourself, – notify those who make assignments to you andnotify those who make assignments to you and– those who may consult with you on matters those who may consult with you on matters

that could impact the affected business.that could impact the affected business.Oral notice sufficient; written advisable. Oral notice sufficient; written advisable. 5 5 C.F.R. Part 2635 Subpart F and 5 C.F.R.Part 2635.402C.F.R. Part 2635 Subpart F and 5 C.F.R.Part 2635.402

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Disqualification beginsDisqualification begins whenwhen . . . . . .

you agree to discuss the prospect of you agree to discuss the prospect of employment, regardless of who made employment, regardless of who made the the first contact, orfirst contact, oryou send a targeted resume to any person you send a targeted resume to any person

or entity over which you have or entity over which you have responsibility in your official duties. responsibility in your official duties. 5 5 C.F.R. Part 2635.603(b)(1)C.F.R. Part 2635.603(b)(1)

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Disqualification endsDisqualification ends when . . .when . . .

you are no longer seeking employment, oryou are no longer seeking employment, orif you do not hear from a potential if you do not hear from a potential employer for two months after sending employer for two months after sending out an unsolicited resume. out an unsolicited resume.

5 C.F.R. Part 2635.402(b)(2)5 C.F.R. Part 2635.402(b)(2)

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Written AuthorizationYou may participate in a particular matter that has a

direct and predictable effect on the financial interests of a prospective employer if you obtain a written waiver under 18 U. S. C. 208(b)(1) from your ethics official. 5 C.F.R. 2635.605.

To be considered, must make full disclosure. 5 CF.R. Part 2635.402(d), 5 C.F.R. Part 2640.301.

Agency determines that disqualifying interest is not sosubstantial as to be deemed likely to affect the integrity of your services to the Government.

5 CF.R. Part 2635.402(d), 5 C.F.R. Part 2640.301.

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Basic Principles to Remember Basic Principles to Remember

You cannot use your public office for private gain, orYou cannot use your public office for private gain, orgive preferential treatment to any private entity or give preferential treatment to any private entity or individual, orindividual, orengage in activities that conflict with your official engage in activities that conflict with your official duties, andduties, andyou must avoid any action that gives the appearance you must avoid any action that gives the appearance

that you are violating these rules.that you are violating these rules. 5 C.F.R. Part 5 C.F.R. Part 2635.1012635.101

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Seeking Employment - Bar Rules Lawyer serving as public officer/employee shall not negotiate for private employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially. Exception for adjudicative officers. ABA MR 1.11(d) D.C. doesn’t address “negotiating,” but prohibits a lawyer from accepting other employment in a matter in which the lawyer participated personally and substantially as a public officer or employee. D. C. Rule 1.11(a).

No waiver offered under bar rules.

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Seeking Employment SummarySeeking Employment Summary

When you are seeking employment When you are seeking employment – with persons whose financial interests would be with persons whose financial interests would be – directly and predictably affected by particular matters directly and predictably affected by particular matters – in which you are participating personally and in which you are participating personally and

substantially, then you need to substantially, then you need to – disqualify yourself from participation in the matter until disqualify yourself from participation in the matter until – you are no longer seeking employment, or get written you are no longer seeking employment, or get written

authorization, and you will need to authorization, and you will need to – remember the basic principles, andremember the basic principles, and– check your bar rules.check your bar rules.

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Federal Criminal Statute, Federal Criminal Statute, 18 U.S.C. 18 U.S.C. §§207207

Permanent Bar Key ElementsPermanent Bar Key Elements No former employee shallNo former employee shall

– knowingly, with the knowingly, with the intent to influenceintent to influence, make any , make any communication to or appearance before communication to or appearance before

– an employee of the United States on behalf of any other an employee of the United States on behalf of any other personperson

– in connection with a in connection with a particular matter involving a specific particular matter involving a specific party or partiesparty or parties, ,

– in which s/he participated in which s/he participated personally and substantiallypersonally and substantially as as an employee, and an employee, and

– in which the in which the United StatesUnited States is a is a partyparty or has a or has a direct and direct and substantial interestsubstantial interest. . 18 U.S.C. 18 U.S.C. §207§207 (a)(1), 5 C.F.R. (a)(1), 5 C.F.R. §2641.201(a)§2641.201(a)

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Federal Criminal Statute, Federal Criminal Statute, 18 U.S.C. 18 U.S.C. §§207207Two Year Bar Key ElementsTwo Year Bar Key Elements

Similar to permanent bar, but Similar to permanent bar, but – applies to all matters that the former applies to all matters that the former

employee knows or reasonably should know employee knows or reasonably should know were pending under his/her official were pending under his/her official responsibility during his/her last year of responsibility during his/her last year of government service, and thegovernment service, and the

– disqualification is limited to two years.disqualification is limited to two years. 18 U.S.C. 18 U.S.C. §207§207 (a)(2), 5 C.F.R. (a)(2), 5 C.F.R. Part 2641.202(a)Part 2641.202(a)

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Federal Criminal Statute, Federal Criminal Statute, 18 U.S.C. 18 U.S.C. §§207207One Year Bar Key ElementsOne Year Bar Key Elements

Trade or treaty negotiationsTrade or treaty negotiations– one-year restriction on aiding and advising that applies to a one-year restriction on aiding and advising that applies to a

former government employee who participated in an ongoing former government employee who participated in an ongoing trade or treaty negotiations during his/her last year of federal trade or treaty negotiations during his/her last year of federal service.service. 18 U.S.C. 18 U.S.C. §§207(b), 5 C.F.R. Part 207(b), 5 C.F.R. Part 2641.2032641.203

Former senior employeeFormer senior employee– No appearance or communication before former agency on behalf No appearance or communication before former agency on behalf

of another with intent to influence.of another with intent to influence. 18 U.S.C. 207(c) U.S.C. 207(c)

Former senior and very senior employeesFormer senior and very senior employees– No aiding or representing a foreign entity before United States No aiding or representing a foreign entity before United States

with the intent to influence a decision of the United States.with the intent to influence a decision of the United States. 18 U.S.C. 207(f), 5 C.F.R. Part 18 U.S.C. 207(f), 5 C.F.R. Part 2641.2042641.204

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Federal Criminal Statute, Federal Criminal Statute, 18 U.S.C. 18 U.S.C. §§207207Two Year Bar Key ElementsTwo Year Bar Key Elements

Former Very Senior Employees also subject to a two year bar– on communication with former agency, and certain

government officials – with the intent to influence. 18 U.S.C. §207(d), 5 C.F.R. Part

2641.205

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Rule 1.11 Key ElementsRule 1.11 Key Elements

ABA Model Rule 1.11ABA Model Rule 1.11Personal and substantial Personal and substantial participationparticipationAs a public officer or As a public officer or employeeemployeeIn a matter involving a In a matter involving a party or partiesparty or partiesRequires disqualificationRequires disqualificationFrom representation of From representation of another clientanother clientIn the same matterIn the same matter

D.C. Rule 1.11D.C. Rule 1.11Personal and substantial Personal and substantial participationparticipationAs a public officer or As a public officer or employeeemployeeIn a matter involving a In a matter involving a party or partiesparty or partiesRequires disqualificationRequires disqualificationFrom other employmentFrom other employmentIn the same/substantially In the same/substantially related matterrelated matter

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Rule 1.11 Key Elements Cont’d.Rule 1.11 Key Elements Cont’d.

ABA Model Rule 1.11ABA Model Rule 1.11When a lawyer is When a lawyer is disqualified, firm is also disqualified, firm is also disqualified unlessdisqualified unless– Lawyer timely screened Lawyer timely screened

from profitsfrom profits– Written notice promptly Written notice promptly

given to government given to government agencyagency

D.C. Rule 1.11D.C. Rule 1.11When a lawyer is When a lawyer is disqualified, firm is also disqualified, firm is also disqualified unlessdisqualified unless– Lawyer timely screened Lawyer timely screened

from profitsfrom profits– Written notice promptly Written notice promptly

given to government given to government agencyagency

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Rule 1.11 Key Elements Cont’d.Rule 1.11 Key Elements Cont’d.

ABA Model Rule 1.11ABA Model Rule 1.11Permits representation Permits representation with agency consentwith agency consentIncludes a prohibition on Includes a prohibition on negotiating employment negotiating employment with an opposing party or with an opposing party or lawyerlawyerKnowledge of confidential Knowledge of confidential government information is government information is a separate basis for a separate basis for disqualification disqualification

D.C. Rule 1.11D.C. Rule 1.11Rule does not provide for Rule does not provide for agency consentagency consent

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Rule 1.11 vs. 18 U.S.C. Rule 1.11 vs. 18 U.S.C. §§207207

ABA & D.C. Rules 1.11ABA & D.C. Rules 1.11 Applies to behind the Applies to behind the scenes representation or scenes representation or employment employment

18 U.S.C. 18 U.S.C. §§207207Applies only to knowing Applies only to knowing communication with or communication with or appearance before a appearance before a court or agencycourt or agencyUnited States is a party or United States is a party or has a direct and has a direct and substantial interestsubstantial interest

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Post Employment SummaryPost Employment SummaryThe post employment rules for government lawyers The post employment rules for government lawyers entering the private sector can get challenging.entering the private sector can get challenging.We have shown you how the Federal criminal statute We have shown you how the Federal criminal statute differs from the ABA Model Rule and the D. C. Bar differs from the ABA Model Rule and the D. C. Bar Rule.Rule.The Federal statute permits a former government The Federal statute permits a former government attorney who is otherwise prohibited from attorney who is otherwise prohibited from representing a client before the federal government representing a client before the federal government to to have behind the scenes conversations with the have behind the scenes conversations with the client and his law firm.client and his law firm.The ABA Model Rule prohibited such activity unless The ABA Model Rule prohibited such activity unless written consent is obtained.written consent is obtained.The D. C. Rule prohibits even behind the scenes The D. C. Rule prohibits even behind the scenes conversations and no waiver is available.conversations and no waiver is available.

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Confidentiality: Standards of Conduct

Prohibited from using non-public information to further your own private interests or the interests of others. 5 C.F.R. Part 2635.703

Required to disclose waste, fraud, abuse, and corruption to appropriate authorities. 5 C.F.R. Part 2635.101(b)(11).

You must avoid actions creating the appearance that you are violating the law or the ethical standards. 5 C.F.R. Part 2635.101(b)(4).

Test: Whether a reasonable person with knowledge of the relevant facts would determine that they create an appearance of wrongdoing. 5 C.F.R. Part 2635.101(b)(14).

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Confidentiality Key ElementsConfidentiality Key Elements

ABA Model Rule 1.6ABA Model Rule 1.6General rule is that General rule is that “information relating to “information relating to the representation” of a the representation” of a client cannot be revealed.client cannot be revealed.

A lawyer may not use A lawyer may not use confidential information confidential information relating to a client to relating to a client to `material disadvantage of `material disadvantage of the client the client MR 1.9(c)MR 1.9(c)

D.C. Rule 1.6D.C. Rule 1.6General rule is that General rule is that “confidences” and “confidences” and “secrets” of a client cannot “secrets” of a client cannot knowingly be revealed.knowingly be revealed.A lawyer may not A lawyer may not knowingly use confid-knowingly use confid-ences or secrets to the ences or secrets to the client’s disadvantage, or client’s disadvantage, or for the advantage of the for the advantage of the lawyer or another clientlawyer or another client

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Confidentiality Key Elements cont’d.Confidentiality Key Elements cont’d.ABA Model Rule 1.6(b)ABA Model Rule 1.6(b)

A lawyer may reveal A lawyer may reveal information relating to the information relating to the representation to the representation to the extent reasonably extent reasonably believed necessarybelieved necessary– To prevent “reasonably To prevent “reasonably

certain death or substantial certain death or substantial bodily harm,” orbodily harm,” or

D.C. Rule 1.6(c)D.C. Rule 1.6(c)A lawyer may reveal client A lawyer may reveal client confidences or secrets to confidences or secrets to the extent reasonably the extent reasonably necessarynecessary– To prevent a criminal act To prevent a criminal act

reasonably believed likely to reasonably believed likely to result in death or substantial result in death or substantial bodily harmbodily harm

– To prevent the bribery or To prevent the bribery or intimidation of witnesses, intimidation of witnesses, jurors, court officials, or other jurors, court officials, or other persons involved in persons involved in proceedings. proceedings.

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Confidentiality Key Elements cont’d.Confidentiality Key Elements cont’d.ABA Model Rule 1.6(b)ABA Model Rule 1.6(b)

To prevent client from To prevent client from committing a crime or fraud committing a crime or fraud reasonably certain to result in reasonably certain to result in substantial injury but only if substantial injury but only if the crime or fraud was the crime or fraud was facilitated by use of the facilitated by use of the lawyer’s services.lawyer’s services.To prevent, mitigate or rectify To prevent, mitigate or rectify substantial injury to financial substantial injury to financial interests or property of another interests or property of another but only if the crime or fraud but only if the crime or fraud was facilitated by use of the was facilitated by use of the lawyer’s services.lawyer’s services.

D.C. Rule 1.6(d)D.C. Rule 1.6(d)

To prevent client from To prevent client from committing a crime or fraud committing a crime or fraud reasonably certain to result in reasonably certain to result in substantial injury for which the substantial injury for which the lawyer’s services were used.lawyer’s services were used.

To prevent, mitigate or rectify To prevent, mitigate or rectify substantial injury to financial substantial injury to financial interests or property of another interests or property of another for which the lawyer’s services for which the lawyer’s services were used.were used.

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Confidentiality Key Elements cont’d.Confidentiality Key Elements cont’d.

ABA Model Rule 1.6ABA Model Rule 1.6

To secure legal advice about To secure legal advice about the lawyer’s “compliance with the lawyer’s “compliance with these Rules”. these Rules”. To establish a claim or To establish a claim or defense in certain instances.defense in certain instances.To comply with another law To comply with another law or court order.or court order.

D.C. Rule 1.6D.C. Rule 1.6

To secure legal advice about To secure legal advice about the lawyer’s compliance with the lawyer’s compliance with the law, including these rules. the law, including these rules. To establish a claim or defense To establish a claim or defense in certain instances.in certain instances.When permitted by the rules or When permitted by the rules or required by law or court orderrequired by law or court orderFor a government lawyer, when For a government lawyer, when permitted or authorized by law.permitted or authorized by law.

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Summary: Confidentiality and Privilege

Rules similar: Basic rule of maintaining your client’s confidences applies under the Standards, the ABA MR and the DC Rule.Rules differ: MR/DC Rule may reveal if client consents. Not with Standards.FOIA demonstrates a statutory balancing of government’s right to retain vs. public’s right to obtain information. Protecting public safety or national security may prevail.Frost v. Perry, 161 F.R.D. 434 (D. Nev. 1995).

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CompensationCompensation

Former employees are prohibited from Former employees are prohibited from receiving, either directly or indirectly, receiving, either directly or indirectly, any compensation for “representational any compensation for “representational services” in connection with a particular services” in connection with a particular matter in which the United States is a matter in which the United States is a party or has a direct and substantial party or has a direct and substantial interest. interest. 18 U. S. C. 18 U. S. C. §203§203

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Compensation cont’d.Compensation cont’d.

Representational services meansRepresentational services means– communications to or appearances before communications to or appearances before – Federal entities Federal entities – with the intent to influence the Government with the intent to influence the Government – on behalf of a third party.on behalf of a third party.

Includes legal and consulting services.Includes legal and consulting services.

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Compensation cont’d.Compensation cont’d.

Prohibition applies equally to representational Prohibition applies equally to representational services rendered by the former employee services rendered by the former employee personally or by another if the employee personally or by another if the employee shares in the compensation.shares in the compensation.Prohibition attaches if the covered Prohibition attaches if the covered representational services were provided at a representational services were provided at a time when the individual was a Government time when the individual was a Government employee, regardless of whether the employee, regardless of whether the individual provided those representational individual provided those representational services.services.

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Compensation, cont’d.

Associate – not affected if paid fixed salary.Cannot trace to services before the government.

Bonus – cannot be calculated on the basis of the firm earnings that include compensation for services before the government.

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Summary: Compensation

If you leave Federal service, you cannot be paid for representational services involving a particular matter in which the United States is a party or has an interest.It doesn’t matter if you did the representing.The prohibition applies if the services were rendered when you worked for the government.

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Post Employment SummaryPost Employment SummaryThe post employment rules for government lawyers The post employment rules for government lawyers entering the private sector can get challenging.entering the private sector can get challenging.We have shown you how the Federal criminal statute We have shown you how the Federal criminal statute differs from the ABA Model Rule and the D. C. Bar differs from the ABA Model Rule and the D. C. Bar Rule.Rule.The Federal statute permits a former government The Federal statute permits a former government attorney who is otherwise prohibited from attorney who is otherwise prohibited from representing a client before the federal government representing a client before the federal government to to have behind the scenes conversations with the have behind the scenes conversations with the client and his law firm.client and his law firm.The ABA Model Rule prohibited such activity unless The ABA Model Rule prohibited such activity unless written consent is obtained.written consent is obtained.The D. C. Rule prohibits even behind the scenes The D. C. Rule prohibits even behind the scenes conversations and no waiver is available.conversations and no waiver is available.

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ResourcesAdv. Op. 99 x 14(2) (deferring to agency views on whether sunset reviews of agency orders should be treated as the same "particular matters involving specific parties" as the underlying original investigations even though another Department involved in the review reached a different conclusion).Adv. Op. 2002-5 (pre-licensing matters relating to Yucca Mountain were part of the same particular matter involving specific parties as subsequent licensing proceedings).Brown v. Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc).In re Sofaer, 728 A.2d 625 (D.C. 1999).United States v. Phillip Morris Inc., 312 F. Supp. 27 (D.D.C. 2004).D.C. Legal Ethics Opinion 308 (2001) “Ethical Constraints on Lawyers Who Leave Private Employment for Government Service.Government Lawyers and Confidential Norms, 85 Wash. U. L.R. 1033 (2007).

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HypotheticalsHypotheticals

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1. Ethical obligations for a government attorney seeking employment

For almost 5 years, Tom Jones, an attorney with the ABC Agency’s OGC, has been the agency counsel working with the DOJ Civil Division, in defending a class action suit brought against the ABC Agency and several pharmaceutical companies regarding bill practices.

Realizing that the 5-year anniversary of his entry on duty is near at hand, Tom calls James Jones, a former colleague at the ABC Agency who is now in private practice, to ask for advice about seeking employment. James is a partner with the L & W Law Firm. James asks Tom for a resume. The L & H Firm represents one of the drug companies in the class action litigation, but James has no connection with that litigation.

1. May Tom send his resume to James?2. If Tom decides not to send his resume to James, may Tom continue to represent the ABC Agency in connection with the class action law suit?3. Do you have any advice for Tom or for the ABC Agency?

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2. Ethical obligations for government attorneys entering the private sector

At ABC Agency, a government agency that provides reimbursements for certain categories of medical expenses, Will Smith, a government attorney, participated in the agency’s promulgation of regulations for the submission and payment of claims.

Smith also worked on an administrative proceeding brought by XXX Health Services challenging the agency’s denial of reimbursement for Heart Widgets, and he worked on a lawsuit brought by YYY challenging the regulations.

1. May Smith represent a client, other than XXX or YYY, who has a claim

against the agency under the Reimbursement Regulations? What if he waits a year?

2. May Smith represent XXX before ABC Agency on the claims he worked on while at the agency? What about representing XXX on new and different claims under the Reimbursement Regulation?

3. May Smith represent YYY in claims before the agency? 4. May Smith’s partners or associates represent the clients in the matters

above? 4141

Questions?

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